IN THE CASE OF:    

		BOARD DATE:  30 June 2015	  

		DOCKET NUMBER:  AR20140019417 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant, the former spouse of a deceased former service member (FSM), requests in effect correction of her former husband's record to show he elected Survivor Benefit Plan (SBP) coverage for former spouse, and payment of the SBP annuity based on his death.  

2.  The applicant states after she applied for SBP benefits based on the death of her former husband, she was informed that her former husband did not change the beneficiary to former spouse as witnessed in their divorce decree and his intention to do so.  At the time of her divorce, she was not notified of any requirement to make a change in the DEERS system.  Her first knowledge was given when she applied for benefits in October 2014.  She spoke with the DEERS office at Fort Bragg and the official suggested she send this application as it was an obvious clerical error.  She is unsure if her former husband was aware of the requirement but he contributed to this program until his death.  As witnessed in her divorce decree, his intention was always to enable her to get the benefit.   She believes his claim should be honored.  Her divorce decree and the statement he signed before his death specifically name her as the beneficiary.  She is 80 years old and is very distressed that her benefit is not paid.  

3.  The applicant provides:

* FSM's Retirement Orders
* Back page of FSM's Retiree Account Statement
* DD Form 1883 (SBP Election Certificate)
* Her marriage certificate
* Letter from the FSM to her
* Divorce decree
* Death certificate

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 26 February 1933.  He and Mildred, the applicant, were married on 1 February 1958.   

2.  Having had other service, the FSM was appointed as a Reserve warrant officer of the Army and entered active duty on 25 February 1956.  He served in a variety of assignments and he attained the rank of chief warrant officer four (CW4). 

3.  On 7 March 1973, the FSM completed a DD Form 1883.  He indicated he was married to Mildred and they had two sons born in June 1959 and September 1960.  He elected to participate in the SBP, spouse coverage, based on the full amount. 

4.  The FSM was honorably retired on 31 March 1973 and he was placed on the Retired List in his retired grade of CW4 on 1 April 1973.  

5.  On 9 March 1987, the FSM and applicant entered into a Stipulation and Property Settlement Agreement.  The FSM agreed to retain the applicant as an irrevocable beneficiary of certain SBP which he elected concerning his retirement in 1973 and which provides her with a portion of his retirement in the event of death.  In the event of her death or her remarriage, the FSM had the right to name an alternate beneficiary.  The FSM would provide the applicant with proof of said insurance.  

6.  On 25 March 1987, the FSM and applicant were divorced.  Their divorce decree incorporated the Stipulation and Property Settlement Agreement.  

7.  There is no indication the FSM notified officials at the Defense Finance and Accounting Service of his divorce or that he submitted a change of his SBP coverage within 1 year of his divorce.  Likewise, there is no indication the former spouse made a deemed election to change the FSM's SBP coverage to "former spouse" within 1 year of the date of their divorce.

8.  The applicant provides a statement, dated 23 March 2013, signed by the FSM.  It reads "You [Applicant] are the beneficiary to both policies which are, Survivor Benefits Program and First Pyramid Life."  

9.  On 13 August 2014, the FSM died.  His death certificate shows he was married to Lynette at the time of his death.  

10.  His date of marriage to Lynette is unknown.  

11.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election, once made, was irrevocable except in certain circumstances.  Elections are made by category, not by name.  

12.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  

13.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member's agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

14.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person to elect to provide an annuity to a former spouse.  Any such election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date of the decree of divorce.  The member must disclose whether the election is being made pursuant to the requirements of a court order or pursuant to a written agreement previously entered into voluntarily by the member as part of a proceeding of divorce.

15.  Title 10, U. S. Code, section 1450(f)(3)(A) permits a former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a proceeding of divorce.  Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within 1 year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and the FSM were married on 1 February 1958.  He retired in March 1973.  At the time, he elected spouse SBP coverage based on the full amount.  They were divorced on 25 March 1987.  Their divorce decree incorporated a Stipulation and Property Settlement Agreement.

2.  In the Stipulation and Property Settlement Agreement, the FSM agreed to retain the applicant as an irrevocable beneficiary of certain SBP which he elected concerning his retirement in 1973 and which provides her with a portion of his retirement in the event of death.  In the event of her death or her remarriage, the FSM had the right to name an alternate beneficiary.  The FSM would provide the applicant with proof of said insurance.  

3.  Even though the FSM continued to pay the SBP premiums, neither the FSM changed his SBP election to former spouse nor the applicant made a deemed election for former spouse coverage within 1 year of the divorce.  Additionally, according to the FSM's death certificate, the FSM was married to someone else at the time he died. 

4.  A spouse loses eligibility as an SBP beneficiary upon divorce.  There is no provision in the SBP which makes former spouse coverage an automatic benefit. The only means by which the divorced spouse may receive a survivorship annuity is if former spouse coverage is elected.  A court order by itself cannot be used to institute coverage.  Under Federal law, a signed election request must be received before action can be taken to establish former spouse election.  

5.  The law allows a former spouse to deem the election.  Coverage may also be deemed if the retiree has been ordered by the court to make a former spouse election.  Under Federal law, a request for deemed election must be received from the former spouse within 1 year from the date of the court decree that awards the coverage.  A former spouse may request to deem an election before the end of the 1-year period in which the retiree is allowed to make an election.

6.  SBP elections are made by category, not by name.  Additionally, the FSM remarried.  Since SBP elections are made by category, not by name, once the FSM and applicant were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary.  Therefore, in the event of his death, any SBP benefits would have to be paid to the beneficiary in effect at the time of death – his spouse (now widow), not his former spouse, if they have been married for at least 1 year.

7.  Notwithstanding the applicant's sincerity, the Board may not correct the FSM's records to effect a change of his SBP election to former spouse coverage, for doing so would deprive his current spouse of a property interest without due process of law.  The Board would accept a request for reconsideration if accompanied by a signed, notarized declaration from the FSM's current widow renouncing or relinquishing any interest in the SBP annuity or a court order from a state of competent jurisdiction wherein the current widow was a party, divesting the current spouse of her interest in the SBP.
8.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   _X_____   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20140019417





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140019417



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1